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Alain Leibman writes:

Normally, trial judges are vigilant in ensuring that every step in a jury's deliberative process takes place within the confines of a single location: the jury deliberation room. Jurors are abjured to do nothing outside that room which could affect their deliberations, that is, not to discuss the case with friends or family members at home, not to read news stories about the case, not to have discussions with anyone in the courthouse, not to do their own research, and not to visit any of the places mentioned during the course of the trial. That room is the sole chamber in which jurors are to discuss, reflect upon, and evaluate the evidence in the case.

That is unless the trial judge accedes to their request to do homework during deliberations. In United States v. Esso, 684 F.3d 347 (2nd Cir. 2012), the judge in the Southern District of New York, sitting in a mortgage fraud case, received a note from the deliberating jury indicating that it wanted to go home early one day and wanted to take the indictment home to read as a time-saver. The trial judge, after instructing the jurors not to discuss the indictment with anyone, agreed over objection to permit this highly unusual homework, and the subsequent conviction was upheld on appeal.

The Second Circuit was clearly uncomfortable with what the trial judge had done, indicating that it had "doubts about the wisdom of the practice and "urg[ing] caution on district courts considering it." First, the Court of Appeals noted that it was hardly standard practice to even send the indictment into the jury room, much less as a take-home, for the obvious reason that the indictment "contains a running narrative of the government's version of the facts" and "is a one-sided presentation of the prosecution's view of the case." Second, the uncontrolled environment outside the jury deliberation room only enhances the risks to a defendant's right to a fair trial, since "[s]ending trial materials home with jurors increases the chance of exposing the jury to outside influences." Third, the appeal presented an issue of "first impression… in any federal or state court." Sounds as if allowing the jurors to take the indictment home, with all of its attendant possibilities of extra-judicial communication, would be a significant error by the trial judge? Not so much.

Somehow, the Second Circuit managed to analogize allowing jurors, unsupervised and with full access to family and friends, to study the prosecution's template of the case at home to permitting jurors to take home copies of their jury instructions, for which there is precedential support. (Regardless of whether it has been held not to deprive the defendant of a fair trial, this peculiar practice, too, insensibly courts danger). The court explained that jurors may be allowed to do independent thinking about the case when at home – although acknowledging that some judges direct their jurors not to think about the case other than while deliberating together in the courthouse – so permitting them to both read the indictment and think about it while at home did not deprive Esso of a fair trial.

The Court of Appeals decision is indefensible. It makes a mockery of the elaborate protocol employed to keep the jury-deliberation process immune from outside influences and to allow the group dynamic of deliberations to function effectively – a protocol which involves physical sequestration in a closed, supervised room during deliberations; a series of redundant and emphatic directions to jurors to not discuss the case or the evidence in any other location; and a severe policing of all the circumstances attending those deliberations. The court might as well have allowed the jurors to study at home over the weekend a transcript of the prosecution's opening statement, and then concluded with utter, if unbelievable, certitude that the fairness of the resulting verdict was unaffected.

There is an unconfirmed rumor that the prosecutors in this case, upon receiving and reading the opinion upholding their conviction, immediately rushed out to buy lottery tickets.
 

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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Common wisdom is that a jury's verdict cannot later be impeached through the testimony of deliberating jurors regarding misconduct which occurred inside the jury room. Federal Rule of Evidence 606(b) explicitly provides that fellow-juror testimony is inadmissible to impeach a verdict, except to show clerical error on the verdict sheet or the influence of outside or extraneous information. Typical of the latter scenarios is one juror sharing a newspaper story about the case or introducing into deliberations her or his personal research into the scene of a crime or the background of a defendant. Irregularities in the internal deliberations of a jury are generally not proper grounds for subsequent inquiry, for fear of impinging on the free-ranging nature and mysterious ways of the jury process. For example, racial comments among jurors have been found by most courts to be barred from subsequent inquiry under the terms of Rule 606(b).

Yet, a small number of cases have carved out a common law corollary to Rule 606(b), permitting juror testimony to explore whether, despite the strictures of the Rule, due process and Sixth Amendment violations have occurred within the jury. Cases such as Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir. 1987) have sanctioned inquiry in instances where an "extremely rare abuse," such as pervasive racial prejudice, animated the deliberations. Other courts have been less willing to part the jury curtain. United States v. Benally, 546 F.3d 1230 (10th Cir. 2008) (district court abused discretion in admitting evidence of racial comments in the jury room; it is "not necessarily in the interest of overall justice" to cure expressions of racial prejudice among jury members).

The First Circuit has thrown its lot in with those courts of appeal which have concluded that racial animus toward a defendant is sufficiently destructive of that person's constitutional rights to permit, if not compel, post-verdict inquiry. United States v. Villar, 586 F.3d 76 (1st Cir. 2009). Villar is Hispanic, and after his bank robbery conviction a juror emailed the defense attorney to complain of several fellow jurors who were unwavering in favor of conviction on the expressed ground that "they" cause all the trouble in the community. The First Circuit agreed that Rule 606(b) did not support inquiry on this basis, but held that this was one of the "rare and grave" cases where claims of racial or ethic bias implicated Villar's constitutional safeguards. The district court, as a result, had discretion to examine the validity of the verdict as against the biased statements of jurors.
 

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